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Tantrik Shikshan Karmachari Gruha Nirman Sahakari Sanstha Through Its Secretary K.T. Mulekar Vs. Shankar S/O Tulshiram Kamble and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application Nos. 83, 84, 85, 86, 87, 88 and 89 of 1983
Judge
Reported in1986(2)BomCR504
ActsSpecific Relief Act, 1963 - Sections 5, 6 and 6(4); Code of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantTantrik Shikshan Karmachari Gruha Nirman Sahakari Sanstha Through Its Secretary K.T. Mulekar
RespondentShankar S/O Tulshiram Kamble and ors.
Appellant AdvocateV.G and M.G. Bhangde, Advs.
Respondent AdvocateG.K. and S.G. Potey, Advs.
DispositionRevision allowed
Excerpt:
.....the parties having to go to another trial. even if the plaintiff were to fail in the original suit as filed, he is not barred from filing a fresh suit on the basis of the title. durga sahaya, air1977cal108 held that it is well settled that in proper cases the court is entitled to take note of the subsequent events and grant relief to the parties accordingly, if by so doing it can shorten litigation and best attain the ends of justice. in appeal the defendant sought amendment sought amendment to introduce plea that the tenancy was void as it was created without permission of rent controller and that the suit based on void tenancy must fail. in view of the above discussion i am satisfied that this is a fit case where the plaintiff society should be permitted to amend the plaint as..........facts may be stated as follows. the plaintiff's case is that it was placed in possession of the suit property on 27-2-1975 by an agreement of sale between the original owner narmadabai in favour of the plaintiff. the plaintiff-society thereafter applied to the competent authority under the urban land ceiling act and permission for purchase was secured by the plaintiff society on 22-3-1979. in august 1979 the non-applicant, original defendant, encroached on part of the land. the plaintiff society, therefore, within six months of the date of dispossession, filed a suit on 1-2-1980 against the defendant under section 6 of the specific relief act.3. after filing of this suit the plaintiff society continued the process of completing the agreement of sale into a regular sale-deed. on.....
Judgment:

S.W. Puranik, J.

1. Being aggrieved by the order dated 2-12-82, rejecting the plaintiff's application (Ex. 12) for amendment of the plaint, passed by the 16th Joint Civil Judge (Junior Division), Nagpur, in Regular Civil Suit No. 136 of 1980, the plaintiff has come up in revision. In all the connected revisions identical suit of the plaintiff were filed against different trespassers and identical amendment was proposed in each of these suits and the same have been rejected. Since the same set of facts and pleadings are involved in all these identical cases, these revisions can be disposed of by this common order.

2. Brief facts may be stated as follows. The plaintiff's case is that it was placed in possession of the suit property on 27-2-1975 by an agreement of sale between the original owner Narmadabai in favour of the plaintiff. The plaintiff-society thereafter applied to the Competent Authority under the Urban Land Ceiling Act and permission for purchase was secured by the plaintiff society on 22-3-1979. In August 1979 the non-applicant, original defendant, encroached on part of the land. The plaintiff society, therefore, within six months of the date of dispossession, filed a suit on 1-2-1980 against the defendant under section 6 of the Specific Relief Act.

3. After filing of this suit the plaintiff society continued the process of completing the agreement of sale into a regular sale-deed. On 20-2-1980 the plaintiff society secured permission from the revenue authorities to convert the land for non-agricultural use. Thereafter on 21-3-1980 the vendor of the plaintiff executed a registered sale-deed in favour of the plaintiff. In pursuance of the registered sale-deed the suit property was also mutated in the name of the plaintiff on 19-12-1980.

4. The defendant filed his written statement on 19-9-1980. He took up a plea that he was in possession since 1976 under a registered sale deed from another vendor, that is to say, a sale-deed from a person who had purchased from the original owner Narmadabai. Thus the defendant pleaded better title to the plaintiff.

5. It is thereafter that on 6-7-1982 the plaintiff society filed an application (Ex. 12) for amendment of the plaint. According to the plaintiff, shortly after filing of the suit subsequent developments have taken place and the plaintiff is in a position to base its claim on title and also seek relief of removal of any structures erected by encroachers as well as for manse profits. In a way, by the proposed amendment the plaintiff wants to add a new cause of action which arose on the date of sale-deed dated 21-3-1980, two months after the suit was filed.

6. The defendant objected to the amendment by his reply (Ex. 14). According to the defendant, the plaintiff is seeking to change the very nature of the suit as well as case of action from possessor title to title on ownership.

7. The trial Court on hearing Counsel of both the parties found that the proposed amendment is not bona fide, that it is filed with inordinate delay and the basis of the original suit and the basis of the proposed amendment are diametrically opposite and it also changes the cause of action and nature of the suit and rejected the proposed amendment. It is this order which is impugned and in all other connected revisions it is similar order on similar facts.

8. With the assistance of Mr. M.G. Bhangde, Advocate for the applicant-plaintiff and Mr. G.K. Potey, Advocate for the respondent-defendant, I have perused the impugned orders as well as the pleadings and proposed amendments.

9. It was contended on behalf of the plaintiff that the basic relief which was claimed in the original suit was that of possession and even after the amendment the relief of possession continues to be on record, the proposed amendment is necessitated in order to strengthen the case of the plaintiff for the relief asked and in view of the fact that the plaintiff society has also acquired title under a regular sale-deed. According to the plaintiff, therefore, it does not change the nature of the suit and at any rate it can be allowed to avoid multiplicity of litigation of filing of a fresh suit.

10. Shri Potey on behalf of the respondent-defendant, however, strenuously argued that the amendment changes the very nature of the suit claim. The original suit was filed under section 6 of the Specific Relief Act, 1963 and was simply passed on possessor title and no party had a right to agitate title to the property. The only relevant question was whether the plaintiff was ousted from possession by the defendant with six months prior to the filing of the suit and was thus entitled to restoration of possession. By the proposed amendment the plaintiff is carving out a new cause of action which has accrued subsequent to the suit and which changes the nature of the suit from the one based on possessor title to the one based on title to the property. According to him, therefore, the amendment ha been rightly rejected by the trial Court.

11. Much was said on both sides about the nature of the suit and whether the amendment could be allowed or not. Under Order 6, Rule 17 of the Code of Civil Procedure the Court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. In that instant case the real question is in controversy is that the plaintiff has been dispossessed by the defendant and he is seeking relief of possession. It is settled law that leave to amend should be refused, (1) where the amendment is not necessary for the purpose of determining the real questions in controversy between the parties, such as where the amendment is merely technical or is useless and of no substance, (2) where the plaintiff's suit would be wholly displaced by the proposed amendment, (3) where the effect of the proposed amendment is to take away from the defendant a legal right which has accrued to him by lapse of time, (4) where the amendment would introduce a totally different, new and inconsistent case and the application is made at a late stage and (5) where the application for amendment is not made in good faith.

12. The Counsel for the applicant-plaintiff drew my attention to the decision in Nair Service Society Ltd. v. K.C. Alexander, : [1968]3SCR163 . It points out distinction between the suits filed under sections 8 and 9 of the Specific Relief Act (old) pertaining to section 5 and 6 of the Specific Relief Act, 1963. It has been observed.

'The provisions of sections 8 and 9 of Specific Relief Act are not mutually exclusive so that after the period of six months is over, it cannot be said that a suit based on prior possession alone is not possible. Section 8 of the Specific Relief Act does not limit the kinds of suit but only lays down that the procedure laid down by Civil P.C. must be followed. This is different from saying that a suit based on possession alone is incompetent after expiry of six months. The correct position is that if section 9 of the Specific Relief Act is utilised the plaintiff need not prove title and the title of the defendant does not avail him. When, however, the period of 6 months has passed question of title can be raised by the defendant and if he does so the plaintiff must establish a better title or fail. In other words, the right is only restricted to possession only in a suit under section 9 of the Specific Relief Act but that does not bar a suit on prior possession within 12 years and title need not be proved unless the defendant can prove one.'

13. In the said decision the Supreme Court was dealing with a suit filed by the plaintiff on 13-10-1942 against a society. According to the plaintiff, he was in possession of Serial Nos. 780/1 and 780/2 being Nos. L(1)(a) and L(1)(b) total area 131.23 acres. The plaintiff claimed to be in possession of these lands for over 70 years. The plaintiff's case was that in October 1939 the persons on behalf of the society trespassed upon and took possession of the suit lands in addition to 160 acres which was adjoining the plaintiff's property and given on lease to the society by the Government. The plaintiff, therefore, claimed possession of the excess land from the society and manse profits.

14. The society in its written statement did not aver that it was not in possession of L(1)(a) and resisted the suit in regard to the entire suit lands. Although the suit was pending for over 17 years in the trial Court, no application for amendment was made by the society. It was only during appeal in the High Court that the society for the first time applied for amendment of the written statement limiting its defence to portion L(1)(b) disclaiming all interest in portion L(1)(a) and attempted to plead the grant of the second lease in its favour on 10th March, 1948. The High Court rejected the amendment application and the suit was decreed against the society. It is after this decision that the society preferred an appeal to the Supreme Court. It is in the light of these circumstances that the Court was finding out whether the suit filed by a person only on the basis of possessor title could present it even after six months. In the same ruling the Supreme Court in paragraphs 28 to 34 discussed the belated amendment filed by the society at the stage of the High Court appeal. In Para 29 they observed as follows :

'Now it is a fixed principle of law that a suit must be tried on the original cause of action and this principle governs not only the trial of suits but also appeals. Indeed the appeal being a continuation of the suit new pleas are not considered. If circumstances change by they can form the subject of some other proceedings but need not ordinarily be considered in the appeal. To this proposition there are a few exceptions. Sometimes it happens that the original relief claimed becomes in appropriate, or the law changes affecting the rights of the parties. In such cases courts may allow an amendment pleading the changed circumstances. Sometimes also the changed circumstances shorten litigation and then to avoid circuitry of action the courts allow an amendment.'

In para 33, the Supreme Court further observed :

'Thus it is a question of the delay and leaches on the part of the society. In so far as the Court was concerned the amendment, would not have unduly prolonged litigation; on the other hand, it would have cut it short. Without the amendment another suit based on the second Kuthakapattom is inevitable. As we have shown above there is good authority in support of the proposition that subsequent events may be taken note of if they tend to reduce litigation. This is one of those cases in which there is a likelihood of prolonged litigation after remand or in which a new case will begin. The amendment will prima facie allow the society to show to the Court that in addition to possession it has also title. This will enable the Court to do complete justice, if the plea is found good, without the parties having to go to another trial.'

With these observations the Supreme Court allowed the amendment at that stage.

15. It was contended by Shri Potey that in the said case the Supreme Court was dealing with amendment proposed by the defendant society whereas in the instant case the amendment is proposed by the plaintiff society and that should not be permitted. In my opinion, it does not matter which party is seeking amendment to the pleadings. The basic question is that the Civil Procedure Code must act as hand maid to the Court in the administration of justice and should not hinder its hands on hyper-technicalities.

16. Specific Relief Act, sections 5 and 6 provide two kinds of suits for seeking possession of property. Under section 5, a person is entitled to the possession of specific immoveable property and may recover it in the manner provided by the Code of Civil Procedure. Section 6 is a special provision where any person dispossessed without his consent or otherwise than in due course of law, may recover possession thereof notwithstanding any other title that may be set up in such a suit. Sub-clause (2) puts a bar of limitation for such suits and such suits cannot be brought after the expiry of six months from the date of dispossession. Sub-clause (3) further says that there shall not lie any appeal from any order or decree passed in any suit instituted under that section while sub-clause (4) categorically states that nothing in that section shall bar any person from suing to establish his title to such property and to recover possession thereof.

17. Thus in terms sub-clause (4) of section 6 of the Specific Relief Act provides that even if a suit under section 6 fails, it does not bar the plaintiff from filing a suit to establish his title to such property and recover possession thereof.

18. What the plaintiff in the present suit is doing is that initially he preferred his suit under section 6 but now by amendment he is changing it over to a regular suit under section 5 as provided by the Code of Civil Procedure. Even otherwise under section 6(4), there is no bar for the plaintiff to file a regular suit on the basis of title and this is on the basis of an event that has occurred after the period of six months of dispossession and the plaintiff has secured regular title to the suit property. Even if the plaintiff were to fail in the original suit as filed, he is not barred from filing a fresh suit on the basis of the title. Thus another suit would be inevitable, but it could be safely avoided by allowing the plaintiff to carry out the proposed amendment. The proposed amendment does not take the defendant by surprise, nor does it prejudice him in any way. The defendant in his written statement has already pleaded title to the suit property under a registered sale-deed of 1976. He will have ample opportunity to further amend the written statement consequential to the plaintiff's amendment. At any rate, the nature of the suit which was for recovery of possession remains the same.

19. There is no inflexible rule that cause of action arising subsequent to the filing of the suit cannot be added by way of amendment. Introduction of a new case is no ground for refusal so long as the defendant has an opportunity of meeting the new case by amendment of written statement and by leading evidence in support of that defence. It was so observed by A.P. Sen, Ag. C.J., while delivering a Division Bench ruling in Prem Lal v. Jadav Chand, .

20. Another Division Bench of the Calcutta High Court in Ayesha Khatoon v. Durga Sahaya, : AIR1977Cal108 held that it is well settled that in proper cases the Court is entitled to take note of the subsequent events and grant relief to the parties accordingly, if by so doing it can shorten litigation and best attain the ends of justice. This power may be exercised even by the Court of appeal is only in the nature of rehearing. Their Lordships had relied on a ruling of the Supreme Court in Pasupa leti Venkateshwarlu v. The Motor and General Traders, : [1975]3SCR958 and of Andhra Pradesh in Amritlal v. Alla Annapurnamma, : AIR1959AP9 .

21. Following these rulings, a learned Single Judge of Andhra Pradesh High Court Rudraraju v. Sagiraji Dadda, : AIR1979AP14 has observed as follows:

'The power conferred upon the Court to permit amendments of pleadings can be exercised at any stage of the proceedings. The power is conferred with a view to securing the determination of real issues in controversy between the parties. The foundation for the civil proceedings is the cause of action. On account of the happening of certain events subsequent to the initiation of the proceedings, the changed or altered circumstances or events may give rise to different causes of action especially when relief sought for remain substantially the same. Even in that case also the Court is empowered to exercise its discretion is such a way as to permit the amendment introducing if need be, a new cause of action also. These powers are conferred upon the Court with a view to facilitating the shortening of otherwise avoidable prolonged litigation and avoidable multiplicity of proceedings and that is also needed in the interests of administration of justice.'

22. In that case the plaintiff had filed a suit for declaration of his title in respect of a property on the ground that he was a legatee under the will executed by his maternal grandmother. The suit was decreed, but in first appeal it was set aside. During the tendency of the second appeal by the plaintiff, his mother, who was the only heir to the plaintiff's grandmother and was also a party to the suit, died. In view of the death of the mother, the plaintiff filed an application for amendment of the plaint, stating therein that even assuming that the Will in his favour was invalid, he gets title to the property of his grandmother through his mother as a legal heir. At the stage of second appeal this amendment was allowed.

23. In a decision of our Court reported in Mahadeo v. Yusuf Bhai, 1976 Mh.LJ 93 Masodkar, J., has taken the following view in respect of amendment of plaint. The plaintiff had sued arrears of rent. The claim was decreed. In appeal the defendant sought amendment sought amendment to introduce plea that the tenancy was void as it was created without permission of Rent Controller and that the suit based on void tenancy must fail. Thereupon the plaintiff sought amendment of the plaint to base his claim on title and claimed damages for use and occupation. It was held that the plaintiff was always entitled in such a suit to rely on his title and claim relief for use and occupation; that the amendment became necessary on the Appellate Court allowing amendment of defendant and the delay thus having been explained no question of limitation could arise and that the amendment was consequential and was rightly allowed.

24. Thus there is a consistent view that to avoid multiplicity of litigation events taking place after the suit is brought could be taken into consideration and amendment may be permitted even if it introduces a new cause of action and new right provided the relief asked for remains the same. In view of the above discussion I am satisfied that this is a fit case where the plaintiff society should be permitted to amend the plaint as proposed.

25. The order impugned rejecting the proposed amendment needs to be quashed and set aside. This order shall be common order for all the connected revisions. All the revisions are allowed. The impugned orders therein are quashed and set aside. The plaintiff society in each suit is permitted to bring in the proposed amendment. The defendants shall have the right to have consequential amendment of the written statement. There shall be no order as to costs.


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